City of Allentown, Matter of
| Decision Date | 21 April 1989 |
| Citation | 557 A.2d 1147,125 Pa.Cmwlth. 290 |
| Parties | In the Matter of Condemnation in Fact, by the CITY OF ALLENTOWN Arising From the Acts and Actions by the Said City, its Agents, Employees and Officials With Regard to the Neuweiler Brewery in Eminent Domain. George M. HANNA, for himself and as equitable owner through the Pennsylvania Development Credit Corporation and Pennsylvania Development Credit Corporation in its own right, Appellants, v. The CITY OF ALLENTOWN et al., Appellees. 487 C.D. 1987 |
| Court | Pennsylvania Commonwealth Court |
John P. Karoly, Jr., Allentown, for appellants.
Alan Black, Allentown, for the City of Allentown, et al.
Before DOYLE and SMITH, JJ., and BARBIERI, Senior Judge.
Appellants appeal from the February 4, 1987 order of the Court of Common Pleas of Lehigh County which sustained Appellees' preliminary objections in the nature of a demurrer and dismissed Appellants' complaint. This litigation commenced when Appellants, George M. Hanna and the Pennsylvania Development Credit Corporation, equitable and legal owners respectively of the Neuweiler Brewery, filed in the trial court a praecipe for writ of summons against Appellees on January 4, 1985. A two-count complaint was later filed on January 30, 1985 under Section 502 of the Eminent Domain Code (Code), Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. § 1-502.
Appellants assert that they have been deprived of their real and material rights in the named property without due process of law, and in count one they request that this Court appoint viewers to determine the value of said property and assess just compensation. In count two of their complaint, Appellants allege that the statements of city officials at a budget hearing constituted an independently tortious form of interference with property rights. Appellants claim $800,000 in compensatory and $1,000,000 in punitive damages.
Appellants aver in their complaint that on October 12, 1984, Appellee Raymond Polaski (Polaski) in the course of his duties as Director of the City of Allentown's Department of Code Enforcement proposed at a budget hearing that funding be allocated for the demolition of the Neuweiler Brewery. Appellee Donald Bernhard (Bernhard), Director of Allentown's Department of Community Development, allegedly agreed with these remarks on grounds that the Neuweiler Brewery could not be successfully rehabilitated. On the following day, this specific proposal was reported in a local newspaper. Appellants submit that as a direct result of the named city officials' course of action and the subsequent publicity attending their remarks, Appellants have been unable to proceed with plans for rehabilitation and/or sale of the Neuweiler Brewery.
Subsequent to briefing and argument, the trial court sustained Appellees' preliminary objections in the nature of a demurrer and dismissed Appellants' complaint resulting in appeal to this Court. 1
Appellants raise four issues for review by this Court: whether the trial court erred in sustaining Appellees' preliminary objections without first conducting an evidentiary hearing; whether the trial court erred in failing to find a de facto taking of Appellants' property; whether the trial court erred in finding that it is not procedurally permissible for a property owner to append a tort claim to an action seeking the appointment of a board of view under the Code; and whether the trial court erred in finding that the Appellees never tortiously interfered with Appellants' property rights.
It is well established in this Commonwealth that a de facto taking occurs whenever an entity clothed with the power of eminent domain substantially deprives an owner of the use and enjoyment of his property. See McGaffic v. Redevelopment Authority of New Castle, 120 Pa.Commonwealth Ct. 199, 548 A.2d 653 (1988) (citing Conroy-Prugh Glass Co. v. Commonwealth, 456 Pa. 384, 321 A.2d 598 (1974)); Department of Transportation v. Steppler, 114 Pa.Commonwealth Ct. 300, 542 A.2d 175 (1988). "Where a de facto taking is alleged, the property owner bears a heavy burden of proof and must show that exceptional circumstances exist which substantially deprive him of the use of his property and further, that this deprivation is the direct and necessary consequence of the actions of the entity having the power of eminent domain." Holmes Protection of Pittsburgh Inc. v. Port Authority of Allegheny County, 90 Pa.Commonwealth Ct. 342, 346, 495 A.2d 630, 632 (1985), appeal denied, 519 Pa. 656, 546 A.2d 60 (1988).
Initially, Appellants assert that the trial court erred in sustaining Appellees' preliminary objections without first conducting an evidentiary hearing. As this Court has recently held:
When confronted with a petition for appointment of viewers alleging a de facto taking to which a preliminary objection in the nature of a demurrer is filed, the lower court must first decide whether as a matter of law the averments of the petition, taken as true, are sufficient to state a cause of action of a de facto taking.
If not, the preliminary objections must be sustained and the petition dismissed or the petitioner allowed to amend his pleading. If the averments, taken as true, might establish a de facto taking, the lower court must take evidence by deposition or otherwise so that a judicial determination might be made. If the averments on their face establish a de facto taking, then the preliminary objection must be dismissed. Petition of Ramsey, 20 Pa.Cmwlth. 207, 342 A.2d 124 (1975).
Harborcreek Township v. Ring, 48 Pa.Commonwealth Ct. 542, 544, 410 A.2d 917, 918 (1980). See also Section 406(e) of the Code, 26 P.S. § 1-406(e).
Appellees submit that the use of depositions to create an evidentiary record is expressly sanctioned by the Code and emphasize that in the instant case, an extensive record was created by the parties through their deposed testimony. Appellants contend that they have been deprived of their right to due process because "the taking of evidence by the trial court was limited to its potential to review depositions and affidavits attached to the parties' briefs." Appellants' Brief, pp. 7-8. Appellants concede their participation in the proceedings that created an evidentiary record in the form of depositions and do not deny that Appellees' preliminary objections were briefed and argued orally before the trial court. Nevertheless, Appellants contend that the trial court cannot rule on preliminary objections which raise issues of fact until it has conducted an evidentiary hearing, citing City of Philadelphia v. Martorano, 38 Pa.Commonwealth Ct. 573, 394 A.2d 674 (1978).
Appellees correctly distinguish Martorano from the instant case on grounds that in Martorano no evidentiary record of any kind was developed by the trial court before it dismissed preliminary objections, whereas instantly "an extensive deposition record was developed over a period of two years, including depositions of all the parties or their representatives." Appellees' Brief, p. 10.
Appellants in the alternative assert that the trial judge sustained preliminary objections without sufficient consideration of the evidentiary record created by the parties. Nothing in the record supports Appellants' assertion. The record on appeal includes the original papers and exhibits filed in the lower court, the transcripts of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the lower court. Pa.R.A.P. 1921. This Court may, therefore, consider only material duly certified in the record transmitted to the lower court. Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258 (1974); Hudgins v. Jewel T. Discount Store, 351 Pa.Superior Ct. 329, 334, 505 A.2d 1007, 1010 (1986). Instantly, Appellees strenuously object to receipt of Appellants' supplementary materials contained in their appellate brief which were not entered in the record below. Therefore, as those supplementary materials were never duly certified to this Court, they will not be given any consideration on appeal. Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 489 A.2d 1291 (1985).
Upon review of the record, this Court is satisfied that nothing in the trial court's opinion suggests a failure on its part to consider the pertinent evidence of record. Nor did the trial court err in failing to conduct an evidentiary hearing where, as here, an extensive record was developed in accordance with provisions of the Code.
Appellants claim that the statements made by Appellees Polaski and Bernhard at the budget proposal hearing and the Allentown Morning Call newspaper publicity the following day directly resulted in their loss of rental income and Appellants' inability to sell their property. Appellants submit that the trial court erred at law when it found that Appellants had failed to present sufficient evidence to establish a de facto taking.
Appellants immediately concede that mere publicity concerning the proposed taking of property does not constitute a de facto taking. See Commonwealth Appeal, 422 Pa. 72, 221 A.2d 289 (1966). This Court has recently addressed the subject of precondemnation publicity as follows:
It has been held that where rumors begin to take on substance and an agency drafts plans, newspaper articles appear, and the agency announces, publishes, and plots its final plan on the city map, this conduct does not constitute a de facto taking. Commonwealth Appeal, 422 Pa. 72, 221 A.2d 289 (1966).
Visco v. Department of Transportation, 92 Pa.Commonwealth Ct. 102, 105, 498 A.2d 984, 986 (1985). Thus, mere uncertainty concerning future condemnation plans without resulting loss of tenants or loss of income to support the property has been held insufficient to constitute a de facto taking. Miller Appeal, 55 Pa.Commonwealth Ct. 612, 423 A.2d 1354 (1980). Appellants submit, however, that a...
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